CrimProOutline

I. Steps in Criminal Procedure

Steps in Criminal Process
1.Pre-arrest investigation stage (rarely occurs because usually investigation is as a result of a
reaction to a 911 call or something like that), talk to people, ask questions, look around the
neighborhood
2.Arrest (form of seizure)
3.Booking- often are booked for a different crime than what you end up being charged for, just
enough charges to keep the person
Jailing- another form of seizure
4.Post-Arrest Investigation Stage- (over 60% of jail population haven’t been convicted of a
crime)
a. lineup 6th Amendment aspect of lineup (is counsel there? If you have already been arrested,
then yes.) 14th Amendment issue, due process if lineup is fair
b. police investigation (Miranda warnings) interrogators important to get people to confess early
5.Bring a Formal Charge by Filing a Complaint
a. Decide to drop the charge, if they suffered enough, evidentiary issues, due process problems,
de mininimus (prosecutors drop as much as 40% of cases)
6.Defendant’s First Appearance in Court (presentment in most jurisdictions, PA preliminary
arraignment)
Appear before the judge
a. First time you are told what the actual charges are
b. Be informed of your rights at that point
c. May have an opportunity for bond (bail in criminal sending) bond that an accused person puts
up to ensure that he will show up (can be money or property)
Bail bondsman, asks for a certain percentage of your bail up front, at that point the bail
bondsman will come after you to make sure you show up
Many jurisdictions lower bonds or don’t require them if have certain connections to the
community (such as in DC, where if had a landline telephone, did not have to pay for bail)
d. Determination made whether or not you are indigent to see if you need the appointment of
counsel
Jails- generally 6 months or less
Prisons- greater than 6 months
7. Preliminary Hearing/Arraignment
Preliminary Hearing- determines probable cause both that the crime has been committed and that
the person in question committed the crime, defendant doesn’t have to turn over anything,
prosecution is a reluctant to turn over anything, but the prosecution must give over anything that
could be exculpatory, prosecution wants to put as little evidence as possible to keep strategy
secret and to prevent the impeachment of the witnesses, defense doesn’t put on anything at this
stage, this can be redone with more evidence without violating double jeopardy, but this rarely
happens, this one, the person will definitely have an attorney
Grand Jury (instead of preliminary hearing) for indictment – grand jurors can ask questions,
jurors decide whether there is probable cause, is very easily manipulated by prosecutors,
prosecutors who have to bring the case before the grand jury may purposely weakly prosecute
Types of Indictment
1. Information- charging document after preliminary hearing
2. Indictment- charging document after grand jury
8. Arraignment
Around 98% of defendants plead guilty, mostly people plead guilty in order to get a deal
Plea bargains- if you have a plea bargain, you must put it on the record, similar to a contract
Change of Plea hearings
9. Pre-Trial Motions
Motions to suppress- crucial in drug cases, is a matter of law, not of fact
Motions in limine- preliminary motion to get the judge to rule on something before you get to it
in trial, typically evidentiary, so attorneys know what the judge will do when something comes
up at trial
10. Trial
Overwhelming number of cases never get to trial
State courts 40% of trials are criminal cases 1/3 in US are criminal cases
Judges have to get to criminal cases first because of the right to a speedy trial
Very serious cases will make it to trial even if it is relatively weak
11. Sentencing
Pre-sentence report for the judge done by a social worker or similar person
Moved from a less arbitrary exercise of discretion system to a less discretionary system with a
guideline sentencing regime
List of crimes and their degree with aggravating and mitigating factors, charts show the
punishment based on results of guidelines
Greater sentences in the federal system than the state system, can use this to bargain with
defendants
Jury has to have found the aggravating factors for greater sentences, not judge that has to find
aggravating factors
Judge can decide facts that are relevant to whether you serve sentences consecutively or
concurrently
12. Appeals
Even after one has exhausted the appeals process, there are post-appellate motions such as DNA
evidence
II. Incorporation
4th Amendment
1. unreasonable searches and seizures clause
2. no warrant without probable clause (warrant clause)
5th Amendment
3. double jeopardy clause,
4. not be compelled to be a witness against oneself (self-incrimination clause)
5. life, liberty or property without due process of law (federal due process clause)
6th Amendment (right to counsel generically what is referred to)
6. some criminal prosecutions speedy trial (6 months),
7. public trial,
8. right to a jury trial,
9. be informed of the nature and cause of the accusation,
10. be confronted with the witnesses against you (confrontation clause),
11. compulsory process for obtaining witnesses in his favor,
12. assistance of counsel for his defense (right to counsel)
8th Amendment,
 13. no excessive fines
14. no cruel and unusual punishment
14th Amendment federal due process clause, equal protection clause
Many states give a person more rights than is granted by the federal constitution
Duncan v. Louisiana 17 Incorporation of Jury Trial selectively incorporates the jury trial right
from the Sixth Amendment and applies it to the states for serious crimes, those where you could
get more than 6 months in prison, also includes the Supreme Court cases that came with that
right, consider whether the provision is fundamental to Anglo-American jurisprudence
Williams v. Florida 964 Number of Jurors fundamental right to a jury does not require 12
people on the jury
Apodaca v. Oregon 967 Unanimity of Jury not Required unless 6 man jury Three men were
convicted by juries that returned less than unanimous verdicts, the essential feature of a jury is
the interposition of the common sense of laymen between the accused and the government,
defendants argue that a unanimous jury is required in order to give substance to the reasonable
doubt standard guaranteed by due process, but this standard does not come from the Sixth
Amendment, defendants rely on 14th Amendment requirement that juries represent a cross-
section of the community, but this ignores the fact that every opinion will not be placed on the
jury and that all the Constitution forbids is exclusion of identifiable segments of the community,
court does not agree with idea that minority groups would be disregarding by allowing non-
unanimous juries
III. Right to Counsel
A. Right to Counsel at Trial
Betts v. Brady 26 Failed to Acknowledge Right to Counsel Right to counsel in Sixth
Amendment is not required in all cases, most states do not afford this right to all criminal cases,
should be for legislative policy, Had the defendant not been able to represent himself properly, a
refusal to appoint counsel would have resulted in a reversal of the conviction, Because the 14th
Amendment protects property as well as life and liberty, the right to counsel could extend to civil
cases, Some cases without counsel may result in a conviction that is unfair, but cannot say that
this is true in all cases
Gideon v. Wainwright 30 Incorporation of Right to Counsel In our adversary system of
criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured
a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Lawyers
in criminal courts are necessities, not luxuries., Governments and those who can afford it hire
attorneys, this shows the importance of counsel
A defendant can retain counsel of his or her choice, but that counsel must be admitted to practice
in the jurisdiction in which the trail is being held, unless the trial court exercises its discretion to
grant counsel special admission to the Bar for purposes of that trial only (pro hac vice admission)
Argersinger v. Hamlin 34 for purposes of counsel , jury trial right is less important than right to
counsel right, no person may be imprisoned unless he was represented by counsel at his
trial, the day in jail rule
applied after the fact, judges will have sense of how serious it is going to be, if there is any sense
that there will be jail, judge will appoint counsel
Scott v. Illinois 36 only ended up with a fine after a bench trial where he was unrepresented,
could have been imprisoned for up to a year, court adopts actual imprisonment as line for
representation of counsel
Alabama v. Shelton 36 day in jail rule applies to suspended sentences Shelton was sentenced
to prison time but the sentence was then suspended and he was put on probation, if he violated
his probation, would get sentence, court found that if the imprisonment is triggered, it is not for
probation violation, but for the underlying offense, therefore, must have right to counsel in such
a case
An uncounseled misdemeanor conviction can be used to enhance punishment at a
subsequent conviction
B. Counsel at Other Stages
Kirby v. Illinois 37 right to counsel at any critical stage of the criminal prosecution after the
initiation of adversary judicial criminal proceedings-whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment
United States v. Wade 37 critical stage when potential substantial prejudice to the
defendant’s rights inheres in the particular confrontation and the ability of counsel can
help avoid that prejudice
If you are a target of the grand jury, you have a right to counsel, if not, you may or may not
have a right to counsel
For lineup, depends whether you have been arrested already, before, have a right to
counsel, after, no right to counsel
Preliminary hearings, have a right to counsel
Rothgery v. Gillespie County Supp. 8 right to counsel attaches when a prosecution is
commenced, first appearance before a judicial officer at which a defendant is told of the
formal accusation against him and restrictions are imposed on his liberty focus on whether
the government has committed itself to prosecute, the adverse position of government and
defendant have solidified, and whether the accused finds himself faced with the prosecutorial
forces of organized society and immersed in the intricacies of substantive and procedural
criminal law, arrested erroneously for being a felon in possession of a firearm, was indicted and
jailed for six months before appointment of counsel
C. Right to Waive Counsel/Represent Self
Iowa v. Tovar 38 right to waive counsel, need be knowing and intelligent At first OWI
offense, represented himself, had two more, on third one, attorney argued that he could not have
his third offence enhanced to a third degree felony from a second-degree misdemeanor because
had not had counsel, Constitutional requirement for waiving a right to counsel, “knowing,
intelligent act done with sufficient awareness of the relevant circumstances”
1.Intelligent- depend on a range of cases-specific factors including defendant’s
education/sophistication, complexity of the nature of the charge, the stage of the proceeding
2.Knowing- be made aware of the dangers and disadvantages of self-representation
Things you do have to tell someone for a good waiver
1. Nature of charges against him
2. That they have the right to be counseled about plea
3. The range of punishment for the guilty plea
Faretta v. California 42 constitutional right to represent one’s self and decline counsel person
has the right to assistance of counsel, but also has the right to dispense with this right, accused
himself has the rights to make his defense, counsel is just to assist in this, giving up the right
must be knowing and intelligent, but has the constitutional right not to use appointed counsel
Indiana v. Edwards Supp. 9
Defendant was found competent to stand trial but not mentally competent to represent
himself
Individual is mentally competent to stand trial if Dusky
1. Defendant has a rational as well as factual understanding of the proceedings against him
2. Defendant has sufficient present ability to consult with his lawyer with a reasonable
degree of rational understanding
Here, the case involves counsel for trial
1. Previous cases focus on a defendant’s ability to consult with a lawyer and to assist him in
preparing the defense
2. Cannot have a single mental competency test for both standing trial and representing
oneself, because standing trial is a lesser role than defending oneself
3. Self-representation when unable to represent oneself will not affirm the dignity of the
defendant
4. Trials must appear fair to all who observe them
Stand-by counsel is legitimate
right to represent oneself at trial is qualified by the trial court's interest in preserving courtroom
decorum and promoting the orderly presentation of evidence, questioning of witnesses, and
advancement of legal argument
D. Ineffective Assistance of Counsel
If counsel was ineffective, get a new trial, are not acquited
Powell v., Alabama 57 right to effective assistance of counsel generally
Strickland v. Washington 57 capital case where defendant did not cooperate with attorney and
then claimed ineffective assistance of counsel requirements for ineffective assistance of
counsel, considering totality of the evidence before the judge and jury
1. "The defendant must show that the counsel's performance was deficient…"
(performance)
2. "The defendant must show that the deficient performance prejudiced the defense.
This requires showing that counsel's errors were so serious as to deprive the
defendant of a fair trial." (prejudice)
US v. Cronic 69 Defendant cannot argue extrinsic factors, only specific errors made by trial
counsel extrinsic factors argued were that 1. Time afforded for investigation and preparation 2.
The experience of counsel 3. Gravity of the charge 4. Complexity of possible defenses 5.
Accessibility of witnesses to counsel
Florida v. Nixon 71 defendant was unresponsive, attorney conceded guilt in order to improve
chances of not getting the death penalty, Florida Supreme Court said any concession of that order
without defendant’s express consent is prejudicial ineffective assistance of counsel, Court finds
that counsel’s decision to make concessions did not “fall below an objective standard of
reasonableness”
Rompilla v. Beard 76 objective standard of reasonableness under prevailing professional
norms, a reasonable defense attorney would have looked at the file of defendant’s prior record to
examine the offense of the prosecution, also, this was prejudicial because the file painted
defendant’s background and mental health in ways that could be used for mitigating factors
Glover v. US 86 automatic prejudice if you get one more day in jail than you would have
defense attorney failed to object to a mis-grouping of charges, this led to a longer prison
sentence, any elongation of sentence is considered prejudicial
Schriro v. Landrigan supp. 19 it is not ineffective for counsel to refuse to present evidence for
mitigating circumstances at the defendant’s request
Wright v. Van Patten supp. 20 representation by speakerphone at plea was not ineffective
assistance of counsel
Carey v. Musladin supp. 85 spectator conduct of wearing buttons of the victim at trial, objection
based on this for prejudice denied
 IV. Fourteenth Amendment Griffin-Douglas Doctrine

Griffin v. Illinois 97 no constitutional right to appeal, but not providing a transcript of trial
prevents appeal, required free trial transcripts based on 14th Amendment due process of
fundamental fairness and equal protection because cannot separate rich and poor in this way
Douglas v. California 97 indigent defendant has a right to an attorney on the first appeal
when he is entitled to that appeal (not when the appeal is only discretionary)
Halbert v. Michigan 97 even if the defendant pled guilty, still has a right to counsel on first
appeal as of right
Ake v. Oklahoma 101 main defense was insanity, could not afford expert, in this case, needed
the shrink, even though could make an insanity defense without an expert, gave him expert
Test for deciding whether you need the expert
1. Is it likely to be a significant factor at trial?
2. Basic tools of an adequate defense?
Courts rarely grant these requests
V. Exclusionary Rule

A. Basics
Wolf v. Colorado 575 does not incorporate exclusionary rule and gives alternatives to the
exclusionary rule
1. Public opinion (if the police get too crazy, the public will stop the police)
2. Criminal prosecution of police officers (prosecutors would be reluctant to prosecute
because they use cops for investigation and witnesses etc.)
3. Self-scrutiny (internal and external) internal part of the police department is difficult tend
to be too tolerant of the other, external bodies that investigate police misconduct (can
only make recommendations, but can use the media heavily)
4. Civil actions (hard to sue them, police officers have a form of immunity if they have
acted in good faith, so have to show that they have acted in bad faith, often do not have a
lot of assets, have to actually sue the city by showing it had a practice of ignoring these
problems)
5. Special forums (not mentioned by the Court, but has come up since) create administrative
agency that handles complaints against the police, Democrats will not support this
because they are mostly in favor of the exclusionary rule, Republicans are not for actions
against the police and big government
Mapp v. Ohio 582 police enter house without Dolly Mapp’s consent, cannot find anything
related to the crime, so find something and say it is pornography, selectively incorporated the
exclusionary rule and applied it to the states, exclusionary rule is part of the Fourth
Amendment, judicial integrity would not want to use evidence procured wrongfully, deterrence
of the police because they will not have an incentive to get evidence illegally, because there will
be no benefit from it, If the police do something that is unconstitutional, then the fruits of
that unconstitutional action can be suppressed in the prosecution’s case at trial
B. Good-Faith Exception
US v. Leon 596 objective test good-faith exception when police use a search warrant (police
usually don’t use search warrants) exclusionary rule is a judicially-created remedy to protect
Fourth Amendment rights, balance the costs of bad people getting away with crimes against the
benefits seen as small of using bad search warrants, is objective test because the Court did not
want to make a disincentive to train police officers
Exceptions to Good-Faith Exception for Search Warrants
1. Affiant (law enforcement officer who wrote an affidavit averring facts, that had been
looked at by judge and decides if there is probable cause) has lied in the affidavit or was
reckless, that cannot be good faith
2. Magistrate totally abandons his judicial role
3. Affidavit is so lacking with respect to probable cause that nobody could reasonably rely
on it
4. Affidavit is so deficient in particularity (has to particularly describe the place to be
searched and things searching for)
Groh v. Ramirez 611 application for warrant named things to be seized, but warrant did not name
them, the warrant was facially invalid, where warrant facially does not name places to be
searched and items to be seized officer cannot reasonably presume it to be valid and
exclusionary rule applies
Hudson v. Michigan 588 violation of the knock and announce rule in executing a search
warrant is unconstitutional, but will not apply exclusionary rule to the evidence
Sanchez-Llamas v. Oregon supp. 55 refused to apply the exclusionary rule for violation of
Vienna Convention which required law enforcement to tell foreign nationals of their ability to
get consular assistance
Herring case- that exclusionary rule is still part of the Fourth Amendment , good faith exception
to the exclusionary rule extended when they have in their records that there is an outstanding
arrest for someone, pursuant to that arrest, they come up with narcotics, the narcotics will not be
suppressed
C. Settings
US v. Janis 616 criminal gambling charges were dropped, but IRS kept taxes on money that they
had received based on advice of police, no exclusionary rule applied to federal government
non-criminal agency that received evidence that was suppressed in the criminal trial,
exclusionary rule aims to deter, there would be no deterrence effect for IRS in this case, because
they did not have the opportunity to act wrongfully
exclusionary rule doesn’t apply to grand jury, incremental deterrence theory/marginal deterrence
theory, the whole reason for the exclusionary rule is deterrence, if you apply the exclusionary
rule to grand juries do you get more deterrence? If you don’t, then there is no reason to apply the
exclusionary rule. Criminal defendants hardly ever win in incremental deterrence theory, not
habeas proceedings
140 note 1 have to have state action, exclusionary rule does not apply to actions by private
people unless are acting in concert, most policing in the US is done by private police and
security guards, if they do something unconstitutional and turns it over to the government, there
is no exclusionary rule
You cannot suppress yourself as the fruit
D. Standing
Alderman v. US 623 no rights of the victim are at stake when the evidence is offered against
some other party, therefore there is no standing in such a case, wiretap of phone, owner
could suppress statements, others could only suppress statements that they made
US v. Payner 638 government illegally seized documents from banker that showed people’s bank
accounts, they did not have standing to exclude evidence, because it was not their property
being seized
Rakas v. Illinois 624 refused to suppress a rifle found in a car where defendants were passengers,
inquiry for standing is
1. Did the search and seizure infringe on the defendant’s own rights?
2. Did the defendant have a legitimate expectation of privacy in the place where the
items were seized?
This case, the petitioners did not have their car searched and had no expectation of privacy in the
passenger compartment or glove compartment of someone else’s car
Exclusionary rule does not apply to people, only evidence
Minnesota v. Olson 633 overnight guest has a reasonable expectation of privacy and
therefore standing
Minnesota v. Carter 636 business guest does not have standing person staying and bagging
cocaine was in between overnight guest in Olson and merely one legitimately on the premises,
especially because of the commercial nature of his stay
Rawlings v. Kentucky 636 no standing to challenge drugs in another’s purse
1. Had known her for only a few days
 2. He never sought or received access prior to that incident
3. He didn’t have the right to exclude other people from her purse
4. Testified that someone else had access to her purse to rummage through for a hair
brush
5. Precipitious nature of a transaction
6. Did not take normal precautions to seal purse
7. He had no subjective expectation that they wouldn’t get into the purse
Brendlin v. California Supp. 41 police pulled car over without probable cause, have a reasonable
expectation of privacy for yourself, whether a reasonable person in defendant's position after
the car was stopped would have believed himself free to terminate the encounter between
the police and himself, no automatic standing for possessory offense
Automatic standing in some states
E. Fruits
Brown v. Illinois 641 Miranda warnings by themselves are not enough to attenuate the fact
that there was an illegal arrest
Attenuation Factors
1. Miranda warnings
2. Time
3. Atmosphere (is it coercive or not)
4. Are you in custody
5. Were the police acting in good faith?
Exceptions to fruit of the poisonous tree/derivative evidence rule
1. Independent source (got evidence in another way other than the bad warrant for example)
2. Attenuation (not closely connected enough, not directly connected, a lot of time has
passed)
3. Inevitable discovery-preponderance of the evidence

whether, granting establishment of the primary illegality, the evidence to which instant objection
is made has been come at by exploitation of that illegality, or instead by means sufficiently
distinguishable to be purged of the primary taint
Dunaway v. New York 647 police violated the petitioner’s rights, the Court refused to admit
statements because the petitioner was seized without probable cause in the hope that something
might turn up, and confessed without any intervening event of significance
Rawlings v. Kentucky 647 even though petitioner was illegally seized at the time of statements,
connection between the seizure and the statements was sufficiently attenuated 1. Miranda
warnings right before made statements 2. Detention was 45 minutes. People moved freely about
or sat in the first floor of the house 3. Admissions were spontaneous reactions to the discovery of
his drugs in purse, weighing heavily that statements were of free will separate from illegality 4.
Actions of police were not flagrant misconduct 5. Admission was voluntary
Nix v. Williams 649 If police would have inevitably discovered the evidence anyway, without
the unconstitutional activity, then the fruits doctrine does not apply, preponderance of the
evidence that the police would have come across this body anyway, person tells where a body
is thinking it is so the woman can have a Christian burial, the police would have found the body
anyway, some jurisdictions require that the investigation already be underway for inevitable
discovery to apply
Segura v. US 655 had been illegal entry where saw evidence in plain view, but then got a
legitimate warrant and seized evidence, valid warrant search was a means sufficiently
distinguishable to purge the evidence of any taint arising from the entry, Court rejects the
argument that but-for the initial entry, it is possible that evidence could have been destroyed etc.
Impeachment Exception- can use statements gotten illegally to impeach a witness’s testimony,
but cannot use silence to impeach a witness, unless it is pre-arrest silence
VI. Fourth Amendment-General
A. Coverage
Katz v. US 138 bug outside of phone booth, Fourth Amendment protects people, not places.
What a person knowingly exposes is searchable, what they do not is not searchable,
1. Subjective expectation of privacy
2. Expectation is one that society is prepared to recognize as reasonable (objective part
is the more important part of the test)
US v. Jacobson 140 state action, result of official government conduct or by a private
individual acting in concert with or at the behest of government officials upheld police
examination of a damaged package turned over to police by the employees of a private freight
carrier who observed a white powdery substance originally concealed within eight layers of
wrapping
US v. White 141 no protection to a wrongdoer’s misplaced belief that a person to whom he
voluntarily confides his wrongdoing will not reveal it, for government informant
US v. Miller 141 upholding conviction based on check and record obtained from bank
Oliver v. US 141 open fields, upheld entering a field by going around a locked gate with a no
trespassing sign, distinguishes open fields form curtilage, the land immediately surrounding
the home where there is a privacy interest society will recognize
US v. Dunn 142
Curtilage
1. Proximity of the area claimed to be curtilage to the home

2. Whether the area is included within an enclosure surrounding the home

3. The nature of the uses to which the area is put
4. Steps taken by the resident to protect the area from observation by people passing
by
California v. Greenwood 145 no reasonable expectation of privacy in trash, because are exposing
trash to the public (odors etc.) and giving it to a third party
Abandonment- possible to find that a person abandoned something, and therefore no longer has a
subjective expectation of privacy, but Greenwood court did not rely on this
New York v. Class 148 police could move papers to see vehicle identification number inside a
car, because government regulation of cars, there was no reasonable expectation of privacy
Cardwell v. Lewis 148 police towed car after murder arrest, no reasonable expectation of privacy
B. Technology Challenges
Valid technology uses upheld by the Court because no reasonable expectation of privacy 1.
Tracking phone calls 2. Checks and banking records 3. Who you send mail to 4. Records of
URLS 5. Body wire on someone else that records you 6. Fly over house 7. Photographs from
skylights 8. Chemical traces of what companies release into the air 9. Surveillance in public
restrooms 10. Vehicle number 11. Print of tire tread 12. Sniffing of a person 13. Tracking of a
car 14. Night vision 15. Long distance binoculars 16. Back scatter x-rays
Invalid 1. Squeezing your luggage 2. Tracking with a beeper inside the house (cannot use for
info that could not have been used for visual surveillance) 3. Thermal imaging of house
C. Probable Cause
To make an arrest
1. fair probability that crime was committed
2. fair probability that this person committed
To search
1. That the evidence you are seeking is evidence of a crime.
2. Is at the place that you want to search at the time you want to search
Challenges to warrant
 1. On its face- the facts written down do not establish probable cause
2. Go behind warrant- (more difficult) challenge accuracy and veracity of statements
in affidavit, deliberate falsehood or recklessness of the truth
Franks v. Delaware 113 can go behind warrant to say that facts or averments are not true, are the
mistakes in the warrant harmless error?
Maryland v. Pringle 172 found three people in a car, arrested all with the possession of cocaine,
can have joint possession

Spinelli v. US 173
1. tell the magistrate something about the underlying circumstances
2. give magistrate some information which would lead the judge to believe that there is
some veracity
Illinois v. Gates 179 substantial basis for concluding that probable cause exists, veracity,
reliability and basis of knowledge are relevant, but not required strictly informant letter was
sufficient for probable cause
D. Search Warrants
US v. Grubbs 118 “search warrants need to be particular” anticipatory search warrants
okay if triggering condition occurs, if triggering condition does not occur, use
reasonableness test
Maryland v. Garrison 122 police thought that the third floor was one apartment instead of two,
said so on entire warrant, reasonableness (objective) in executing warrant, also consider
police officer’s subjective knowledge
Groh v. Ramirez 125 courts normally look at a warrant and attached and mentioned affidavits,
but if affidavits are not incorporated, courts only consider the warrant itself
Error in stating the place to be searched in things to be seized does not make the warrant
invalid if other descriptions make these things clear
If one item is not described, the warrant still remains valid with respect to other items
Wilson v. Arkansas 126 knock and announce
1. knock
2. announce identity
3. announce purpose
4. delay (give them a chance to open the door)
Knock and Announce Exceptions
1. danger to police
2. delaying an entry will lead to destruction of evidence
Richards v. Wisconsin 129 reasonable suspicion that knock and announce will be dangerous
or destroy evidence, Wisconsin’s law saying that never have to knock and announce for drug
cases was too broad and must be done on a case by case basis
US v. Banks 133 delay for knock and announce does not need to be more than 15-20
seconds, especially for a drug case, may need to delay longer if looking for a stolen piano
Ybarra v. Illinois 132 mere propinquity to others is not enough for a search warrant
Michigan v. Summers you can freeze people if you have a search warrant, stop Summers,
associated with the place, can at least temporarily freeze them
Muehler v. Mena 133 probable cause for search, gang is sleeping and should be less dangerous,
they freeze people to search house, find nothing, bring 1983 action because of the way she was
frozen
Mena was taken out of the house, wants to go to the bathroom, cuffed 3 hours later, discovered
nothing and released her, court says she was treated reasonably
LA v. Rettele 46 supp. Police are looking for 4 AAs that they know are armed and involved with
narcotics, those people moved, have warrant for place where people aren’t there anymore, people
were white, made them stand naked, reasonable for a short period of time, white people can be in
places that black people own, was short, not unreasonable can’t be searched necessarily but
can be frozen just for being in a place
133 note 3 day/night issue, when can you execute a search warrant in the middle of the night?
Have to make a showing of necessity of why you should be able to execute this search
warrant in the night
1. up to ten days
2. nighttime searches, requires greater showing
3. destroy anything for search warrant
4. all persons only in some jurisdictions

E. Plain View Doctrine

Horton v. California 198 Plain view doctrine, exception to warrant requirement, anything
the police see in plain view, they can seize, provided
1. Have to be lawfully at the place where they see the thing
2. Nexus with criminal activity (probable cause that it is connected with a crime)
3. Nexus has to be immediately apparent
Texas v. Brown 202knotted party balloon, opaque, common container for narcotics, even
something that is innocent but has a common criminal use covered in plain view doctrine
Minnesota v. Dickerson 201 note 2 only plain feel case, Terry stop, outer surfaces of the body to
check for weapons, but in this case, Terry stop (no probable cause or arrest) they feel crotch area
where guy kept crack cocaine, if it was just a Terry stop, that would be suppressed, but here, the
argument that it was plain feel like plain view, cannot “squeeze and manipulate” etc.
203 plain smell note 3 can go into car if smell drugs or something, typically, when they smell
marijuana there is, leads to frequent searches
Whren v. US 312 narcotics cops in DC see two black guys in a fancy car in a bad section of
town, follow them, they stand at a stop sign for too long, they stopped them and said they were
looking for dope, as long as the police have objectively information necessary for probable
cause, the fact that you have a racist doing it is irrelevant
Arizona v. Hicks 202 note 4 Suspicion that stereo equipment is stolen, copy serial numbers by
turning it around, go back and get warrant, stereo equipment suppressed
Washington v. Chrisman 201 note 1, guy going through desk to get his ID, cop from outside
sees marijuana seeds and a pipe, seized was lawful seizure
VII. Fourth Amendment-Warrantless Arrests
US v. Watson 204 can make warrantless arrests in public based on probable cause, unless is
for a misdemeanor not committed in the presence of the officer
Atwater v. City of Lago Vista 208 pulled over for seat belt violations, misdemeanor arrest
committed in the presence of officers do not require warrants
Arkansas v. Sullivan 208 subjective intent of officers does not play a role in Fourth
Amendment analysis for warrantless arrests
Payton v. New York 208 cannot enter someone’s house without an arrest/search warrant
Steagald v. US 209 may not search for the subject of an arrest warrant in the home of a
third party without first getting a search warrant
209 note 5 Tennessee v. Garner and Scott v. Harris
Use of deadly force to seize someone, shoot someone who is fleeing the scene of the crime,
only reasonable when that person poses a serious risk of bodily harm to himself or others
VIII. Fourth Amendment- Warrantless Searches
A. Search Incident to Arrest
Chimel v. California 210 make search incident to arrest without a warrant, person, the area
within his immediate control, Area within immediate control moves around with you, like a
compass
Knowles v. Iowa 214 can’t search a person incident to a traffic citation
Illinois v. Lafayette 214 can search personal affects of person for search incident to an arrest
New York v. Belton 216 can search passenger compartment automatically, includes the glove
compartment and includes this whether or not it is locked (overturned by new case)
Virginia v. Moore Supp. 33 search incident to an illegal arrest if you have probable cause
Thorton v. US 221 put the person in a police cruiser and then search his car, apply Belton to
anyone who is a recent occupant of the car (overturned by new case)
Arizona v. Gant car searches
1. Search within person’s immediate control (REALLY must be in immediate control)
or
2. If you arrest someone outside of the car and then find something on them that leads
you to believe that there might be something in the car, can go back to the car
B. Cars
California v. Carney 222 car search exception to warrant requirement applies to motor
homes Car search doctrine- only need probable cause to suspect that there is evidence of crime
in a car, can search it, because of lower expectation of privacy in a car, court will consider
objective indications of a house such as a trailer on blocks or electrical wires
California v. Acevedo 228 a footlocker is not a car under the car search doctrine, but can
search it if have probable cause and is in the car
Colorado v. Burtine 234 search of car was inventory search, inventory search is a police
community caretaking activity, exception to Whren in that if person can show the police
acted in bad faith, items can be suppressed
C. Consent
Schneckloth v. Bustamonte 243 state has the burden of proofing that consent is knowing and
voluntary considering the totality of the circumstances, do not have to tell people that they
have the right not to consent, beforehand cannot lie to a person and coerce them
Ohio v. Robinette 251 after business of the traffic stop is over, police ask to search the car,
person says okay can consent to a search at any time
Illinois v. Rodriguez 254 Woman takes police to bf’s apartment, takes them into back room,
boyfriend is sleeping, they see cocaine and make an arrest, they had been broken up for 3 weeks
1. Some situations, people have common authority, reasonable expectation of privacy
from a person, then s/he cannot let police in for a search, as long as someone is allowed
to go in there, even if it is not necessarily theirs, kids as consenting are mostly not held to
be good, She lied to the police and didn’t live there, this was not a third party consent
2. Good faith exception/apparent authority- they thought she lived there etc. in this case

Georgia v. Randolph 258 if someone comes to a home and there are two people, one says
come in and one says don’t, don’t have authority
D. Exigency
Exigent Circumstances
 1. Hot pursuit
2. Destruction of evidence
3. Need to prevent a suspect’s escape
4. Danger to police or others
5. Fight a fire/emergency assistance
Minnesota v. Olson 378 there must be at least probable cause to believe that one or more of the
other factors were present and, in assessing the risk of danger, the gravity of the crime and
likelihood that the suspect is
Warden v. Hayden 375 hot pursuit exception
US v. Santana 376 hot pursuit/doorway arrest
Vale v. Louisiana 380 an arrest on the street cannot justify a warrantless search of home
376 Flippo, just because there is a murderer and a crime scene does not mean automatic exigency
386 Welsch v. Wisconsin drunk drives down the street near his house, neighbors call the police,
police ring doorbell at the house, stepdaughter says they cannot come in, they push by her and
find him naked under the bed, exigency argument that hot pursuit or evidentiary destruction
because his blood alcohol level was going down, minor offense takes a lot more to establish
exigency, this jurisdiction, drunk driving was a civil offense, not a criminal offense, seriousness
of the crime is relevant for whether or not you have exigency
Brigam City v. Stuart 372 minors in possession shouldn’t be enough for exigency
E. Terry Stops and Frisks
Terry v. State of Ohio 281 when have reasonable suspicion that criminal activity may be afoot,
brief pat down of the outer surfaces of the body, all that you can look for are things that
can harm the officer, limited in scope to weapons
1. Lawful stop
2. Even when you have a lawful stop, must have a reasonable suspicion that the person
is armed and dangerous before you do the frisk
Alabama v. White 311 legitimate to use hearsay information to find reasonable suspicion
US v. Sokolow 311
1. Reasonable suspicion- more than a hunch, less than preponderance of the evidence

2. Profile, can use them but still need probable cause

Arizona v. Johnson
 1. Test for a good stop- reasonable suspicion that criminal activity may be afoot
2. Test for frisk- reasonable suspicion that person may be armed and dangerous
Terry Factors
Neighborhoods, nature of clothing, casual dress, gang colors, tattoos/piercings, high-crime area,
time of day or night, associates, walking apart from associates, appearance out of place with
surroundings, hands in pockets, giving something to someone, young, airplane flight: first
off/middle/last, nervous, bad attitude, bulge in clothing, coming from city known for drugs,
going to city known for drugs, no baggage, walking slowly, walking fast, flight, walking back
and forth in same area, driving slowly, frequent braking, braked when saw police officers,
bought ticket with cash, changed ticket, no tag on luggage, failure to acknowledge police
officer’s presence, using roads used by smugglers, tinted windows, avoiding checkpoints,
expensive vehicle, out-of-state license plates
311 note 2 Quartez test for assessing when you have reasonable suspicion, totality of the
circumstances
334 Sharp note 1 no time limit on Terry stops, whether or not they are doing something to
confirm reasonable suspicion
Florida v. Royar 307 temporary, last no longer than is necessary to effectuate the purpose of
the stop, consent would be invalid
Hibel v. Sixth Judicial District 316 that because of the limiting construction, stop and identify is
only requiring person to give their name, that’s okay, doesn’t force you to give any kind of
identification, that limited exception is okay, but to force you to answer that question, they have
to have reasonable suspicion and a Terry stop, if have reasonable suspicion, have to answer your
name if they have a Terry stop
Maryland v. Buie 322 protective sweep for police safety, not for destruction of evidence like
Chimell
1. a warrant wasn’t required, look in closets and other spaces from which an attack could be
immediately launched (not looking for evidence)
2. warrant a reasonably prudent officer in believing that the area to be swept harbors an
individual that could be dangerous, only spaces where a person can be found, even though
officer made a subjective admission that didn’t fear for his safety
Florida v. JL young black male in plaid shirt was carrying a gun, from a statement, invalidated
the reasonable suspicion because failed to show basis of information
F. Consensual Encounters and Profiling
295 Mendenhall shows that could be consent or could be part of Terry stop, court upheld
search
INS v. Del Gado 302 go into a factory searching for illegals, call this a classic consensual
encounter
Florida v. Baustic 300 upheld searches while “working the buses”
California v. Hodari B 302 when person dropped the drugs, he was not seized, therefore the
evidence was not suppressed, threw rock away, even though it was an unlawful arrest when they
tackled him, evidence still comes in
G. Roadblocks
Delaware v. Prouse 330 no random stops of cars for general crime control
City of Indianapolis v. Edmond 336 no random stops of cars for narcotics because is more like
general crime control
Sitz 336 allowed check points for drunk driving, but could not be random, has to have a plan
Illinois v. Lidster 342 stop for information regarding a hit and run, okay because was more
specific
H. Special Needs and Borders
New Jersey v. TLO 291 because of special needs of schools, do not need probable cause for a
search, only need reasonable suspicion or reasonable suspicion that a school rule is being
violated, broader than Terry search person and belongings, can’t be excessively interusive
in light of the age and sex of the student
Skinner v. Railway 355 railroad safety as special need allowed for drug test without probable
cause
Board of Ed. v. Earls 356 random drug tests of athletes okay based on reasonableness analysis
US v. Flores-Montano 352 at border, strip search, don’t need anything, body cavity search,
need reasonable suspicion
IX. Interrogation Law
Interrogation Law
1. 14th Amendment what shocks the conscience? Torture

2. Supervisory powers
3. Fifth Amendment Miranda
4. Sixth Amendment right to counsel while being questioned

If excluded under 14th Amendment, then it’s out completely, other statements excluded could be
used against other people
Brown v. Mississippi 425 people were hung and whipped and confessed, this shocked the
conscience
Haynes v. Washington 427 solitary confinement, not allowed to call his attorney, whether
confession was determined by coercion, totality of circumstances test for whether or not
something is voluntary or coerced, devices are used to extort confessions from suspects, can be
implied threats, psychological threats, particularly in this case where they had enough evidence
and didn’t need the confession
Ashcraft v. Tennessee 430 36 hours of continuous interrogation was a 14th Amendment violation
Spano v. New York 429 attributes of the defendant Spano had psychiatric and psychological
disorders,
1. Might not be trustworthy
2. We don’t want police officers engaging in activities like this
a. objective (totality of circumstances)
b. subjective side (can also look to the nature of the defendant and the defendant’s attributes to
see if it was reasonable) youth, IQ, psychological condition etc.
Supervisory powers- McNabb-Mallory rule 431 take a defendant without unnecessary delay
before a magistrate judge to get their rights, bond opportunities, won’t take statements made
during unnecessary delay, generally 6 hours unless there are other circumstances such as a rural
area, 5a criminal procedure rule about undue delay, over 6 hours will suppress the statement and
the fruits of it, no unnecessary delay in getting someone to a magistrate for federal and some
states
Arizona v. Fulminante 511 coercion offered Fulminante protection from "tough treatment" in
prison in exchange for a confession to the murder of Fulminante's stepdaughter, Fulminante
agreed
Colorado v. Connelly 512 confesses after being told by Lord, he wants to suppress statement
made to police offer arguing that it was coerced because of his subjective status, majority says
that have to have both subjective and objective coercion, can’t have coerced confession just
because of someone’s subjective qualities
X. Fifth Amendment- Miranda Warnings
Miranda v. Arizona 435 fifth amendment right against self-incrimination sixth amendment right
to counsel
Miranda applies
1. Have to be in custody
2. Have to be interrogated
He must be informed
 1. Has the right to remain silent
2. Explain that anything said can and will be used against the individual in court
3. 440 has the right to consult with the lawyer and to have the lawyer with you during
interrogation
4. 441 if he is an indigent, a lawyer will be appointed
441 if the individual indicates in any manner or at any time that he wishes to remain silent, the
interrogation must cease
441 interrogation continues without attorney, heavy burden on the government to show a waiver
of these rights, most police officers will not only get an oral waiver, but will also ask for a
signature
New York v. Quarles 456 public safety exception to Miranda if believe that Miranda is
prophilaptic standard, than can have an exception, public safety exception, if a reasonable
police officer can believe there is a public safety issue
Oregon v. Elstad 488 create an exception to the fruits doctrine when you have mid-stream
Miranda warnings, statement 2 can come in, statement 1 is out, if either one statement is
involuntary or coerced, they are out, only applies to Miranda violations
Missouri v. Seibert 465 court rejected training to get statements and then clean up with a mid-
stream Miranda warning, acting in bad faith
US v. Putane 491 physical fruits of un-Mirandized statements are not suppressed
XI. Fifth Amendment- Custody and Interrogation
Custody
1. Seizure- would a reasonable person feel that he was not at liberty to terminate the
interrogation and leave
2. Custody- was there a formal arrest or restraint on freedom of movement of the
degree associated with a formal arrest
Mathiason 450 voluntarily comes down to police station, was not in custody
Berkemer 449 traffic stop is not custodial
Rhode Island v. Innis 453 any words or actions on the part of the police other than those
normally attendant to arrest and custody that the police should know are reasonably likely
to elicit an incriminating response from the suspect, do not consider subjective intent of
police officers
XII. Fifth Amendment- Adequacy and Invocation of Warnings
Michigan v. Mosley 480 scrupulously have to honor someone’s request to remain silent,
time in between questioning again was 2 hours, If all they are invoking is their right to
silence, can come back and get them to waive that
Edwards v. Arizona 483 additional safeguards are necessary when the accused asks for
counsel, and we now hold that when an accused has invoked his right to have counsel
present during custodial interrogation, a valid waiver of that right cannot be established by
showing only that he responded to further police-initiated custodial interrogation even if he
has been advised of his rights
Only can have evidence if person gives information he himself initiates, applies only to counsel,
sometimes to clergy in some states
Oregon v. Bradshaw 484 after asked for an attorney says, “what is going to happen to me
now” is initiation and therefore waived right to attorney
inquiry for a drink of water, use the telephone etc. is not initiation, initiation is construed more
broadly now
Davis v. US 477 objective standard for whether or not something is a request for an
attorney, maybe I should see an attorney is not asking for an attorney
Arizona v. Roberson 485 Roberson asserts right to counsel, leave him alone, three days later, he
is still in custody, a different police officer comes to talk to him about a different crime and does
not know about his request for a lawyer, evidence suppressed, once exercise right to counsel,
cannot question ever until get counsel
Minnick v. Mississippi 487 even if already talked to an attorney, cannot question a person
without an attorney after that point
Exceptions
1. Blurt outs
2. Initiate
XIII. Sixth Amendment-Interrogation Law
Massiah v. US 432 statements made by the defendant outside the presence of his attorney
must be suppressed, Edwards Fifth Amendment law applies
1. Deliberately elicited (subjective) as opposed to interrogation reasonably would give
incriminating information under Fifth Amendment (objective)
2. After the initiation of adversarial proceedings
3. Without attorney
Brewer v. Williams 495 since here the police officer's "Christian burial speech" was tantamount
to interrogation, respondent was entitled to the assistance of counsel at the time he made the
incriminating statements
Kuhlmann v. Wilson 500 active/passive distinction informant was merely listening, so did not
violate Sixth Amendment rights
Maine v. Multon 501 co-defendants come to the government, wire co-defendant, can use
somebody who is wired after the right to counsel has attached, that is a Sixth Amendment
violation and will be suppressed in the current case, no Sixth Amendment violation in
potential case that they are trying to find out about
Differences between Sixth Amendment and Fifth Amendment
1. When does the right apply?
a. Sixth Amendment applies only after adversarial procedures are initiated/right to attorney
b. Fifth Amendment custodial interrogation, typically starts earlier but usually ends before
Sixth Amendment does
2. Where do they apply?
a. Sixth Amendment applies anywhere
b. Fifth Amendment applies only when you are in custody
3. What is the police conduct covered?
a. Sixth Amendment covers deliberate elicitation of statements, subjective.
b. Fifth Amendment only applies to police interrogation.
4. What questions can be asked after the defendant invokes his rights?
a. Sixth Amendment allows questioning of other charged crimes because there is no
right to counsel.
b. Fifth Amendment, if defendant just invokes his right to silence, can let up on him and
come back later, but if defendant invokes his right to counsel, can be no questioning
about any crime.